1. The principal issue in this case is the third, and it will be convenient to decide before dealing with the other issues. It has reference to the validity of a will executed by Meghji Dharamsi, the father of the plaintiff Chatturbhooj, on the 7th October 1882.

2. Meghji was the son of the first defendant Dharamsi and the brother of the second defendant Harjivan. Up to the 7th October 1882, the father and two sons had, according to the plaintiff's contention, been joint in food, estate and worship. On that date, Meghji separated from his father and brother, and immediately afterwards disposed by his will, which is the subject of contention in this suit, of the property which then came to him, consisting of a sum of Rs. 6,000, which was at once placed to his credit in the books of the firm of Dharamsi Naranji, and of jewels and clothes then in the possession of Meghji or of his wife Ratanbai, which were considered to be worth Rs. 5,000.

3. Meghi died on the 16th October 1882, leaving his wife Ratanbai and his infant son Chatturbhooj surviving him.

4. The first defendant Dhar amsi was appointed by Meghji executor and trustee of his will, and was required by it to retain, out of the ornaments left by Meghji, ornaments worth Rs. 2,000 for the use of Ratanbai, during her lifetime, and to sell the remainder. He was also required to invest the residue of the state, including any moneys standing to Meghiji's credit in the firm of Dharamsi Naranji, in Government promissory loan notes. On the marriage of Chatturbhooj, the executor was to provide ornaments worth Rs. 3,000, out of the estate, for his wife. So long as Meghji's widow and her son remained in Dharamsi's house, the income of the estate was to accumulate in Government loan notes. If they left the grandfather's house, provision was to be made for their maintenance. Provision was also made for Ratanbai's funeral expenses. The estate, with all accumulations, was to be made over to Chatturbhooj on his attaining his majority; and, finally, in the event of his dying without leaving issue him surviving, then subject to proper provision being made for Ratanbai and for the widow of Chatturbhooj, the estate was to be handed over to the second defendant Harjivan; or, in the event of his death, to his son then living.

5. The suit wag instituted by Ratanbai on the 19th November 1883. She claimed the jewels and clothes disposed of by her husband's will as her own property-the former as her stridhan. She alleged, also, that the will was inoperative so far as the sum of Rs. 6,000 was concerned, as that money was ancestral property.

6. Ratanbai made her infant son the third defendant in the case, and claimed for him that he was entitled to the sum of Rs 6,000, and, further, for herself, that she was entitled to be maintained thereout. She further charged the first and second defendants with using the said sum of Rs. 6,000 on their piece-goods business, and asked that it might be forthwith invested in Government paper for the benefit of herself and her son. The further allegations and prayers of the plaint it is not necessary to refer to in connection with the present issue.

7. Ratanbai died after the institution of the suit.

8. After her death, an order was made by Bayley, J., on the 6th March last, for the revival of the suit and for the amendment of the plaint. The name of Ratanbai was struck out as plaintiff. The infant defendant Chatturbhooj was made the plaintiff in her place, and his guardain ad litem, his maternal uncle, became his next friend, by whom he now sues both in his own right and as legal heir and representative of his deceased mother.

9. In paragraph 6 of the plaint, as it now stands, the plaintiff asserts his right to the sura of Rs. 6,000, left by his father; and as regards the ornaments and clothes, he puts forward two alternative contentions, in the event of the Court holding that they were not the property of Ratanbai, viz., (1) that they were ancestral property which could not be disposed of by Meghji by will; or, (2), if not ancestral property, that; the plaintiff was entitled to them under the will.

10. At the hearing, the plaintiff's counsel argued that the ornaments, as well as the money, were ancestral property and did not press the plaintiff's claim to the ornaments as heir of his mother or as legatee under a will executed by his mother, or as legatee under his father's will.

11. There is no evidence forthcoming to show that the ornaments formed Ratanbai's stridhan; and in the deed of release executed by Dharamsi Naranji and his two sons on the 7th, October 1882 the jewels and clothes given by Meghji are treated as forming, with the sum of Rs. 6,000 given at the same time, the equivalent of Meghj's share in the joint family estate, including the partnership business carried on by the father and his two sons.

12. The first question for consideration is, therefore, whether, at the time when Meghji made his will, the sum of Rs. 6,000 and the ornaments and clothes, referred to in the will, were ancestral or self-acquired property in the hands of the testator.

13. It was contended for the defendants that the property, of which Meghji obtained a share on the 7th October 1882, could not fee treated as ancestral property, which had descended' from father to son, or had been acquired by the aid of property which had so descended; that it was joint property which had been earned jointly by Dharamsi and his two sons; that there was no nucleus of ancestral property around which the joint property had accumulated; and that the share received by Meghji only represented his share of the joint exertions of the three members of the family.

14. In the release, which was executed by the parties on the 7th October 1882, they are described as having been up to that time joint in food, estate and worship, and as having, for some time past, carried on business as piece-goods merchants in partnership. Meghji is further described as having then retired from the partnership, and also become separate from his brother and father in food, estate and worship; but, at the same time, the property coming to him, under the deed is referred to as having been paid to him, and is agreed to be retained by him "for his share of the joint family estate, including the said partnership." There is no evidence to show that the parties were members of an ordinary trade partnership resting on contract. If the sons had a joint interest with their father in the piece-goods business, it was apparently because they were members of an undivided family carrying on business jointly in that capacity. If the property of the family firm had been acquired by the equal exertions of the three members, without the aid of any nucleus of property other than acquired by themselves, then, no doubt, the property of the firm with the accumulations would be self-acquired property even" though it was owned jointly, and on a partition such property would apparently remain self-acquired property in the hands of the several members; even though one of them was the father of the other two.***

15. Having regard to the language of the release just referred to, and to the circumstance that the first defendant admits that it was with the aid of certain medical books, bought at a great cost by his father from ancestral funds, that he was able, on arriving in Bombay, thirty-four years ago, to start business as a medical practitioner, and so accumulate a capital of Rs. 5,000, with which he started the piece-goods business, I am inclined to think that the property, from which a share was given to Meghji in October 1882, was really ancestral property in Dharamsi's hands. If this view be correct, then the share which came to Meghji must have been ancestral property also. In the Rajah of Shivganga's case 9 Moore I.A. 139, it is stated, at p, 609 of the Report, the when property belonging in common to a united Hindu family has been divided, the divided shares go in the general course of descent of separate property; and this decision was relied on by Sir Joseph. Arnold in Lakshmibai v. Ganpat Moroba 4 Bom. H.C. Rep. O.C.J. 150 as tending to show that the same power of alienation by gift, or disposal by will, must exist in the case of divided ancestral property as in the case of other separate property. But this view was dissented from by this Court in the case on appeal 5 Bom, II. C. Rep. 128, O.C.J, as is pointed out at pp. 716, 717 of the third edition of West and Buhler's Digest of the Hindu Law, where it is remarked, with reference to the passage I have just quoted from the Rajah of Shivganga's case 5 Bom, II. C. Rep. 128, O.C.J, that it must not be understood that the nature of the property as ancestral, is changed on a partition. The share taken *** is, indeed, separate estate as regards the other branches of the family; but in the branch to which it belongs it is ancestral estate ***." And in a later case-Baijun Dobun Brij v. Bhukan Lall Awarti L.R. 2 I.A. 275-decided by Privy Council in 1875, one of two brothers is stated, on a partition, to have obtained a "separate estate." But, a little later on in "the judgment, that brother's son is stated to have acquired the estate by inheritance, and it is described as "ancestral estate," derived from his father. (See also Mayne, Section 249.)

16. The expressions contained in the deed of release (exhibit 4 A) which is signed by both Dharamsi and "his two sons, are good evidence as to the nature of the property therein referred to;; but if, for the moment, they be disregarded, and if Dharamsi's own evidence be accepted as to the origin and growth of that property and as to the circumstances under which Meghji took a share of it, then, also, I think that, on partition, the property which went to Meghji became ancestral property in his hands.

17. What Dharamsi says in this:" My brother and I are divided in interest. We divided about a month after my father's death in Samvat 1906 (a.d. 1850). When my brother and I divided, the ancestral house was not divided, as it belonged to our fathers and forefathers. The furniture also remained in the house. I got no part of it. There was hardly anything to be divided. I took nothing out of the family estate. *** After my father's death and my separation, I began to practice medicine in my native country. I taught myself from my books. The books were bought for me before my father's death. My father brought them; and with the medical knowledge so obtained I began to practise medicine in my own country and afterwards in Bombay. I practised this medical business for eleven years. I saved Rs. 5,000 at the end of eleven years. I made the whole of this by my medical practice.

18. "The Rs. 5,000 was the capital with which "I began my piece-goods shop. I had only about Rs. 5 or 6 when I left Jamnagar. I got that out of my practice as a medical man at Jamnagar, and 1 arrived in Bombay" with Re. 1-12-0 in my pocket.

19. It was of my own free will that I gave the Rs. 6,000 and the ornaments and clothes referred to in the release to Meghji,, All that property was given to Meghji in the lump that he might make raw claim in the future. *** As he had lived with me jointly for so many years, he asked to take a certain sum from me. I consented to give that sum and give (? take from), Mm a release. His claim was based on the ground of his having lived with me all his life. The property that he got under the release was given only because he had lived with me so many years, and also because he assisted me in the business. No profits of the business were calculated in Samvat 1938 (a.d. 1882). A lump sum was fixed for him as his share. After that, he could not make any claim against me, on the ground of his having been joint with me from birth. I took a release to that effect. There is no account in any of my books of Harjivan and Meghji as my partners in any year. No account was ever opened in their names. They contributed no capital to the firm. The entire control of the business was in my hands."

20. And again he says:

"It is usual in a Hindu family to have the pots engraved with the name of the head member of the family. As soon as the Rs. 6,000 were paid to him, the pots belonged to me. They were bought out of dispensary funds.*** The payment of Rs. 6,000 to Meghji got rid of and paid off any claim he had against the dispensary funds, or articles bought therewith. That is why I say the plaintiff is not entitled to the silver pot.*** There has never been any difference in the ownership of the shop and dispensary. I am owner of both, and always have been. I used to spend the moneys derived from the dispensary on household expenses, including the expenses of my sons and their families. I similarly spent the shop funds.*** The books from which I taught myself medicine were eight in number, worth 5,000 corees (coree=4 as.). They are manuscript books ** and cost more. My father paid 5,000 corees for them ***; he told me he paid 5,000 corees."

21. Now, notwithstanding this last admission, it seems to me to be Dharamsi's contention that the sum of Rs. 5,000, which he acquired by the practice of medicine with the aid of the books bought by his father, was his own self-acquired property. If it be treated as self-acquired property, the property which ac mulated around it as a nucleus while Dharamsi was carrying on the piece-goods business with the aid of his sons would, at first at all events, be self-acquired property too. Dharamsi contends that it was all his own exclusive property, up to the time that he gave a share to Meghji; but this contention is inconsistent with the circumstance that he gave a share to Meghji, to get rid of and pay off the claims he had been puting forward. By giving him a share under such circumstances, he practically admitted that the property was held jointly by himself and his sons before the partition; and Harjivan, who has been examined as a witness in this case, says: "I sit in my father's shop, and do such business as he directs me to do. I have assisted in that business from my infancy. Meghji also took part in the business. Megliji and I did no other business and until just before his death, Dharamsi, Meghji and I were joint in estate. By that I mean joint in the piece-goods shop and household things. I remember Meghji being paid a certain sum, when my father said: You will have no further claim on the property after the Rs. 6,000 are paid' "; and again he says: "I claim to be joint with my father from my birth in all the property he possesses. Meghji made the same claim. When he was paid Rs 6,000, it was intended that, in future, he should have no claim at all."

22. Though, therefore, Dharamsi is unwilling to admit that his sons had a joint interest with him in the property, it is clear that whether the property was ancestral or not, their interest in it was practically recognized in October 1882. What was given to Meghji was not given-to quote the language of the Calcutta High Court in Mudduri Gopal v. Ram Baksh 6 Calc. W.R. 74 -" simply by the favour of the father." It was given upon consideration of Meghji" surrendering some interest, a right to share in "Dharam-si's estate," which he did by acceptance of this separate parcel.'' If Dharamsi's, property was really self-acquired, and originally belonged to him alone, still, at some time after his sons had begun to help him to increase it, he must have admitted them to a share in it. Whether at such time (if such supposition be correct) the property became ancestral estate for the sons, it is not necessary in this suit to consider; but certainly, as soon as a portion of the joint property was divided off and given to a son, it became, whether it was ancestral or self-acquired up to that time, ancestral in the hands of the son. For assuming the truth of Dharamsi's story as to the mode in which the whole property was acquired, it cannot be held that it was Acquired "by the equal exertions of the father and his two sons. The father says he contributed the nucleus of Rs. 5,000, and on that nucleus the property was formed by the joint exertions of himself and his sons; and as to this, Dharamsi's evidence is not contradicted. The portion that came to Meghji did not, therefore, represent the equivalent of his own exertions only. It represented also portion of the father's original capital.

23. In Rajmohan Gosami v. Gourmohan Gossain 8 Moo. I.A. at p. 96 the Privy Council say of the term "ancestral," in an agreement among brothers: "Ancestral is here employed *** in the sence of ' paternal,' that is, as meaning the property of the father in whatsoever manner or by whatsoever title the father had acquired it "In commenting on this passage, the authors of the Digest of Hindu Law remark: "To him" that is, the father "it might be self-acquired, but to the sons it was ancestral estate Thus in the case of a father, head of a family, property inherited from his father or grandfather is ancestral property, however acquired by its previous possessors "(West and Buhler, 3rd ed , pp. 709, 710)." Property is not the less ancestral, because it was the separate or self-acquired property of the ancestor from whom it came. When it has once made a descent, its origin is immaterial" (see Mayne, Section 248, and Raja Ram Narain v. Pertum Singhi 20 Calc. W.R. 189 quoted in note x to that section). And the term "ancestral property," says Mr. Mayne, "in its technical sense, is applied to property which descends upon one person in such a manner that his issue acquire certain rights in it as against him" (lb., Section 248).

24. Now, in the present case, Meghji did not inherit any property from his father, who is still alive But such a case is declared by the Mitakshara, Ch. I, Section v. Article 3, to be provided for by the text of Yajnavalkya, quoted therein. In Article 1 of the section, Yajnavalkya's specia1 rule concerning the division of the grandfathers effects by grandsons is quoted, viz.," Among grandsons by different fathers, the allotment of shares is according to the fathers." This text is expounded in Article 2 in such a way as to show that grandsons' share the allotments which there deceased fathers would have had. The latter part of Article 3 then meets a particular objection. It settles the doubt which might arise if the grandfather, father, and son were all alive (as in the present case at the time that partition of the grandfather's "estate takes place "To obviate this doubt," writes Vijnaneshwar, "the author says: 'For the ownership of father and son is the same in land which was acquired by the grandfather, or in a corrody, or in chattels which belonged to him)." The word dravya translated "chattels" by Berradaile is translated "wealth" by the Hon. Rav Saheb V.N. Mandlik, and is explained in a foot-note at p. 32 of his translation of the Mayukh (Ch. IV, Section i, Section 3. where also the text of Yajnavalkya is quoted), as signifying "property of any kind."

25. The plaintiff Chatturbhooj, therefore, acquired equal rights with his father Meghji in the property which came to him in the partition of the 7th October 1882 when Chatturbhooj was alive. That is, the property was ancestral property in Meghji's hands, and could not be dealt with by him in the manner in which he at once proceeded to dispose of it by his will. That he had no power to dispose of the whole of it by will, to the prejudice of his son's rights, would seem to follow from the passage in the Mayukha (which, where it differs from the Mitak-shara, is of paramount authority in the island of Bombay), quoted at p. 567 of the report in Lakshman Dada Naik's case I.L.R. 1, Bom. 561. The passage is thus translated by Mr. Mandlik:

"As for the text, ' The father alone is master of all gems, pearls, and corals; but neither the father nor the grandfather is so of all immoveables,' it signifies the father's independence only in wearing and otherwise using ear-rings, rings, [&c], but not in giving or otherwise [alienating them.]"

26. I find, therefore, on the third issue that the provisions ,of the will of Meghji Dharamsi are not operative so far as regards the Rs. 6,000 and the ornaments referred to m the plaint, (His Lordship then disposed of the other issues, which are not material to this report.)